Like most states, Washington uses an implied consent statute to punish anyone who refuses to submit to a breathalyzer test upon being accused of drunk driving. In a ruling last Thursday, the state supreme court upheld the right of police to use force to remove blood from a motorist even after an informed decision to refuse the test has been made. The high court argued that recent changes to the law essentially eliminated the need to seek consent when a warrant is obtained.

The court made its decision in the case of Robert St. John who crashed his motorcycle in Seattle on July 24, 2005. Responding to the scene that day, Seattle Police Officer Eric Michl noticed St. John had slurred his words when speaking. At Harborview Hospital, Michl arrested St. John for driving under the influence of alcohol (DUI) and read the standard warning about the consequences of refusing a blood alcohol test. Although St. John refused to submit, Michl had a judge standing by and St. John's blood was removed from his body by force. At trial, Michl testified that he did not warn St. John that he planned to take his blood regardless of his answer.

"The warning given to Mr. St. John was implicitly misleading, violating his due process rights," St. John's attorney, Ryan Robertson, argued. "The warning told him he had the right to refuse the test, but never told him the state could obtain his blood without his consent with a warrant if he refused; thus rendering the right to refuse meaningless."

A municipal court agreed that Michl's procedure was unfair and illegal, but a superior court reversed the decision. The supreme court's final ruling is that Michl's actions were fair and legal.

"Obtaining a blood alcohol test through the implied consent statute is a separate process from obtaining a blood alcohol test pursuant to a warrant, and the officer made no representation to St. John that the state could not obtain a blood alcohol test pursuant to a lawful search warrant," Justice Susan Owens wrote for the majority.

By separating the two ways to obtain evidence -- by consent and by warrant -- the majority sidestepped a provision of the implied consent statute explicitly prohibiting forced testing.

"If, following his or her arrest and receipt of warnings... the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section," RCW 46.20.308(5) states (subsections 3 and 4 do not apply to the case at hand).

Justices Richard B. Sanders and James M. Johnson filed a dissent, arguing that this provision could not simply be ignored.

"Obtaining a blood sample from St. John by search warrant plainly violated the express prohibition of RCW 46.20.308(5) since St. John withdrew his consent and no exception under the statute applied," Sanders wrote. "If we accept the majority's reasoning, a driver's refusal to consent under subsection (5) would be meaningless."

The majority countered by citing a 2004 legislative amendment stating "neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood." Because focusing on this provision would allow for the "efficient" conviction of those accused of DUI, the high court found no problem with Officer Michl's conduct.

"The implied consent statute explicitly allows a police officer to obtain a blood alcohol test pursuant to a warrant, even after a driver refuses a voluntary blood alcohol test," Owens concluded. "Neither due process nor equitable estoppel requires police officers to inform DUI suspects of the possibility of obtaining a warrant to collect evidence."

A copy of the decision is available in a 100k PDF file at the source link below.